Victim-Specific Clarity Required to Avoid Double Jeopardy When Malicious Assault and Wanton Endangerment Arise from a Single Gunshot

Introduction

In State of West Virginia v. Anthony M., the Supreme Court of Appeals of West Virginia addressed a familiar yet practically thorny problem in criminal charging and double jeopardy: whether a defendant may be punished for both malicious assault and wanton endangerment when both convictions flow from a single gunshot during a domestic violence incident—particularly where more than one person was present and potentially endangered by the same act.

The case stems from two alleged shootings of Brittany S. (the mother of the defendant’s children), one in 2020 and one in 2021. A Kanawha County jury acquitted Anthony M. of the 2020-related charges but convicted him of all charges tied to the 2021 incident, including attempted first-degree murder, malicious assault, wanton endangerment involving a firearm, two counts of possession of a firearm by a prohibited person, use or presentation of a firearm during a felony, and gross child neglect creating a substantial risk of serious bodily injury or death. On appeal, Anthony M. challenged (1) multiple punishments under the Double Jeopardy Clause, (2) sufficiency of the evidence on several counts, (3) a mistrial denial after the State elicited testimony referencing his post-Miranda silence, and (4) the admission of certain lay and relationship-context evidence from the victim’s mother.

The Court affirmed most of the convictions and evidentiary rulings, but vacated the wanton endangerment conviction on double jeopardy grounds because the indictment and trial record did not clearly tie that count to a different victim than the malicious assault count. The Court remanded for resentencing consistent with its opinion.

Summary of the Opinion

• Double Jeopardy (Multiple Punishments): Convictions for malicious assault and wanton endangerment arising from a single gunshot violate double jeopardy when they are predicated on the same victim. The State argued the wanton endangerment count could be read as pertaining to the infant (K.M.), who was nearby in a car seat, but the Court found the indictment and record did not clearly identify a different victim for that count. Result: the wanton endangerment conviction (Count Eleven) is vacated; the malicious assault conviction (Count Eight) stands.
• Sufficiency of the Evidence: The evidence was sufficient to sustain convictions for possession of a firearm by a prohibited person (constructive possession), for crimes hinging on the identity of the shooter (circumstantial and testimonial evidence sufficed), and for gross child neglect creating a substantial risk (leaving an infant mere feet from the shooting and then abandoned in a dark parking lot).
• Right to Remain Silent: The State improperly elicited that Anthony M. did not give “his version of events” post-Miranda. This was constitutional error but harmless beyond a reasonable doubt given its brevity and the overwhelming evidence.
• Lay Opinion and Relationship Evidence: The victim’s mother’s lay opinion identifying the perpetrator was improperly admitted under Rule 701 because it was not “helpful” within the meaning of that rule. However, the error was harmless. The factual “relationship” evidence of threats in the domestic context was admissible as intrinsic/res gestae evidence to complete the story of the crime and provide context.

Analysis

Precedents Cited and Their Influence

• Double Jeopardy Framework
  • Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977): Articulates the three protections of the Double Jeopardy Clause under the West Virginia Constitution, including protection from multiple punishments for the same offense.
  • Blockburger v. United States, 284 U.S. 299 (1932), adopted in State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992): The “same-elements” test; two offenses are not the same if each requires proof of a fact the other does not. Gill also acknowledges lesser-included offense logic—if the greater offense includes all elements of the lesser, dual convictions may offend double jeopardy.
  • State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997): Where a single gunshot supports both malicious assault and wanton endangerment against one victim, wanton endangerment is a lesser-included offense of malicious assault. Dual convictions violate double jeopardy in that fact pattern.
  • Mirandy v. Smith, 237 W. Va. 363, 787 S.E.2d 634 (2016): No double jeopardy where the indictment and record expressly tied malicious assault to one victim and wanton endangerment to another. The victim-distinction was dispositive.
  • United States v. Mendez-Colon, 417 F. App’x 320 (4th Cir. 2011): An indictment’s omission can be cured if the record makes clear which conduct corresponds to which count. The Court here cited this logic to emphasize the need for a record that clearly ties counts to specified victims.
  • Russell v. United States, 369 U.S. 749 (1962), and Cochran v. United States, 157 U.S. 286 (1895): The “record as backstop” concept—defendants may rely on the full record to guard against double jeopardy in future prosecutions. Here, the Court found the record insufficient to identify a distinct victim for the wanton endangerment count.
• Sufficiency of the Evidence
  • State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995): Sets the standard—view evidence in the light most favorable to the State; ask whether any rational trier of fact could find the essential elements beyond a reasonable doubt.
  • State v. Harlow, 137 W. Va. 251, 71 S.E.2d 330 (1952): Weight and credibility are jury questions when there is conflicting evidence.
  • Constructive possession line: State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869 (2001) (meth lab chemicals/equipment), State v. Beck, 241 W. Va. 759, 828 S.E.2d 821 (2019) (digital images), and State v. Warren, No. 22-0369, 2023 WL 6862167 (W. Va. Oct. 18, 2023) (memorandum decision) (firearms in hotel room): Knowledge plus dominion and control suffice for constructive possession even where others have access.
  • State v. Zuccaro, 239 W. Va. 128, 799 S.E.2d 559 (2017): Motive may be probative but is not an element; lack of motive proof does not defeat sufficiency.
• Right to Remain Silent / Harmless Error
  • State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977): It is reversible error to elicit or comment on a defendant’s pre-trial silence in violation of the state constitutional due process and self-incrimination guarantees (post-Miranda protection emphasized).
  • State v. Hoard, 248 W. Va. 428, 889 S.E.2d 1 (2023): Such violations are subject to harmless-error analysis; brief references set against overwhelming evidence can be harmless beyond a reasonable doubt.
  • State v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975): Failure to observe a constitutional right is reversible unless harmless beyond a reasonable doubt.
• Lay Opinion (Rule 701) and Intrinsic Relationship Evidence (Res Gestae)
  • State v. Johnson, 238 W. Va. 580, 797 S.E.2d 557 (2017): Four-part test for lay opinions under Rule 701—personal knowledge; rational connection; helpfulness; not based on specialized knowledge.
  • State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999): “Helpfulness” limits lay opinion where the jury can draw the inference from facts; opinions that act like a “thirteenth juror” are improper.
  • State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014), and State v. Dennis, 216 W. Va. 331, 607 S.E.2d 437 (2004): Relationship violence “close in time” and causally connected to the charged crimes may be admissible as intrinsic evidence to complete the story (res gestae) and is not Rule 404(b) propensity evidence.
  • State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1971): Harmless error test for nonconstitutional evidentiary errors—remove the inadmissible piece, assess remaining evidence, then examine prejudice.
  • State v. Sutphin, 195 W. Va. 551, 466 S.E.2d 402 (1995): Hearsay-within-hearsay analysis in domestic violence threats; threat statements can be admissible as admissions by a party opponent and/or under the excited utterance or state-of-mind exceptions.

Legal Reasoning

A. Double Jeopardy: Multiple Punishments for a Single Gunshot

The Court reaffirmed the Wright principle: when a single gunshot both causes the bodily injury (malicious assault, W. Va. Code § 61-2-9(a)) and constitutes wanton endangerment (W. Va. Code § 61-7-12), wanton endangerment is a lesser-included offense if the convictions are as to the same victim—making dual punishments unconstitutional. Although in the abstract wanton endangerment contains a firearm element not required by malicious assault, Wright holds that, as applied to a single shot against one victim, the lesser-included-offense overlay controls: it is “impossible” to commit the malicious assault by shooting without simultaneously creating a substantial risk to that same victim.

The State invoked Mirandy to argue that this case involved two victims—the mother (Brittany S.) and the infant (K.M.)—and that the wanton endangerment count could be attributed to the child. But unlike in Mirandy, the wanton endangerment count here did not identify a victim in the indictment, and the record did not clearly tie the wanton endangerment count to K.M. The Court underscored that merely having another person present is not enough: the indictment or the trial record must clearly delineate the victim associated with each count to avoid a Wright problem.

The Court also emphasized the “record-as-backstop” concept from Russell and Cochran: a defendant may rely on the record to guard against future jeopardy. Here, that record did not sufficiently establish that Count Eleven targeted K.M., and even the prosecutor could not represent that the case was argued that way below. Because Wright would bar dual convictions against the same victim for a single shot, and the record failed to show a different victim, the wanton endangerment conviction had to be vacated.

Disposition: Count Eleven vacated; resentencing ordered limited to malicious assault (Count Eight) for that gunshot.

B. Sufficiency of the Evidence

Applying the Guthrie standard, the Court rejected three sufficiency challenges:

• Possession of a firearm by a prohibited person (Count Thirteen): The State proved constructive possession—knowledge and dominion/control—where Anthony M. was found exiting the bedroom that contained multiple firearms, including a Taurus PT111 G2 matching the scene’s casing; documents in that room tied him to the address; and other evidence (texts, geolocation) connected him to the shooting. That others may have had access does not defeat constructive possession where the totality supports control.
• Identity of the shooter: Motive is not an element. The combination of Brittany S.’s testimony (Anthony M. was the only adult present; she identified him to police immediately afterward), corroborative domestic-violence-context testimony, geolocation placing his phone at the scene, and the ballistic linkage between the recovered pistol and the casing allowed any rational juror to find he fired the shot.
• Gross child neglect creating substantial risk (Count Twelve): A rational juror could find that shooting the mother within feet of an infant in a car seat, with a bullet ricochet and glass fragments in the vehicle, and then abandoning the infant in a dark parking lot with an unconscious caregiver, constituted gross neglect creating a substantial risk of death or serious bodily injury.

C. Right to Remain Silent and Mistrial Denial

The State elicited (once) that Anthony M. did not give “his version of events” after arrest and Miranda warnings. Under Boyd and Hoard, that was constitutional error. Yet the Court held it harmless beyond a reasonable doubt due to its brevity, lack of emphasis, and the overwhelming independent proof. Given the deferential review of mistrial denials, there was no abuse of discretion.

D. Lay Opinion (Rule 701) and Relationship/Res Gestae Evidence

The victim’s mother, Sylvia S., testified that, months before the 2020 incident, Brittany called her crying and said Anthony M. had a gun and threatened to kill her and the children. She further offered her lay opinion that Anthony M. was the shooter. The Court drew a critical distinction:

• Lay opinion identifying the perpetrator: Improper under Rule 701’s “helpfulness” prong, per Nichols. Where the facts allow the jury to infer identity on its own, a lay opinion that “he did it” is not helpful and risks acting like a “thirteenth juror.” The admission was error but harmless under Atkins because the State’s evidence was otherwise overwhelming and the Court had no grave doubt about prejudice.
• Domestic-violence threat testimony (relationship context): Admissible as intrinsic evidence to complete the story and provide context for the charged conduct (“res gestae”), consistent with Dennis and McKinley. It was close in time and causally connected to the nature of the relationship and the charged episodes, helping the jury understand the dynamics at play. The Court rejected the Rule 404(b) propensity challenge on this ground. The Court also noted, by analogy to Sutphin, that such statements can be admissible through recognized hearsay pathways (admission by a party opponent, excited utterance, state-of-mind), although hearsay was not independently briefed as a stand-alone claim here.

Impact

This opinion has concrete consequences for charging practices, trial presentation, and evidentiary boundaries in West Virginia:

• Victim-specific clarity is now imperative to avoid double jeopardy. When the State seeks multiple punishments for a single gunshot (e.g., malicious assault plus wanton endangerment), it must:
  • Expressly identify distinct victims in the indictment and jury instructions; and
  • Develop a trial record that clearly ties each count to a specified victim.
  Absent such clarity, Wright’s lesser-included-offense bar will require vacatur of the wanton endangerment conviction.
• Prosecutors should align theory, proof, and argument. The Court will not assume a count relates to a different victim simply because multiple people were present. Charging language, proofs, and closing arguments should consistently reflect the State’s victim-specific theory for each count.
• Defense counsel should scrutinize indictments and records for double jeopardy vulnerabilities. If a wanton endangerment count arising from a single shot does not clearly identify a different victim, Wright supports a motion to vacate or a limited resentencing.
• Lay opinion boundaries reaffirmed. Witnesses—particularly family members—must not be permitted to offer bottom-line “he did it” opinions when jurors can infer identity themselves. Counsel should object under Rule 701’s “helpfulness” prong.
• Relationship evidence in domestic violence cases remains broadly admissible as intrinsic/res gestae. Properly limited factual context (e.g., prior threats, recent incidents) that is near in time and causally connected may be admitted without triggering Rule 404(b) if it “completes the story.” Parties should, however, guard against sliding into propensity or lay opinions on ultimate guilt.
• Post-Miranda silence is off-limits. The brief reference here was harmless, but it remains a constitutional tripwire. Law enforcement and prosecutors should avoid direct or indirect references to a defendant’s silence after warnings.
• Constructive possession reaffirmed. Presence plus contextual control can suffice even in shared spaces. Defendants must offer more than the existence of other occupants to defeat possession when documents, movement, and ballistic evidence tie them to the firearms.

Complex Concepts Simplified

• Double Jeopardy (Multiple Punishments): A person cannot be punished twice for the same offense. If two charges are based on the same act and the same victim, and one is a lesser-included offense of the other, only one punishment is allowed.
• Lesser-Included Offense: A crime whose elements are entirely included within a greater crime. If you prove the greater, you necessarily prove the lesser. You generally cannot convict and punish for both based on the same act against the same victim.
• Blockburger Test: Two crimes are different if each requires proof of something the other does not. If not, punishing for both may violate double jeopardy—unless the legislature clearly allows cumulative punishment.
• Constructive Possession: You don’t need to hold an item to “possess” it. It’s enough if you know about it and have the ability and intention to control it, even in a shared space.
• Harmless Error (Constitutional): Even if a constitutional mistake occurs (like referencing post-Miranda silence), the conviction stands if the court is convinced beyond a reasonable doubt that the error did not affect the outcome.
• Rule 701 Lay Opinion—“Helpfulness”: Non-expert opinions are allowed only if they help the jury understand something they couldn’t easily figure out themselves. Opinions that simply tell the jury whom to believe or what result to reach are not helpful.
• Intrinsic/Res Gestae Evidence: Evidence of closely connected acts or statements that are part of the same story or episode as the charged crime can be admitted to complete the narrative, without being treated as separate “bad acts” under Rule 404(b).

Conclusion

State v. Anthony M. clarifies and operationalizes West Virginia’s double jeopardy jurisprudence in a common domestic-violence scenario: a single gunshot that injures one person while endangering others. The Court reiterates Wright’s limitation—wanton endangerment is a lesser-included offense of malicious assault for a single shot against a single victim—and builds on Mirandy by insisting on victim-specific clarity in the indictment and record to justify multiple punishments. Without that clarity, the wanton endangerment conviction cannot stand.

The Court also reaffirms core evidentiary principles: constructive possession may be proved circumstantially; motive is not an element; brief references to post-Miranda silence can be harmless but remain improper; “relationship” evidence in domestic-violence cases is often intrinsic and admissible to complete the story; and lay opinions identifying the perpetrator are generally not “helpful” and should be excluded under Rule 701—though such errors may be harmless where the State’s case is otherwise strong.

Practically, the decision guides prosecutors to draft indictments and structure trials with victim specificity when charging overlapping offenses arising from a single act, and it offers defense counsel a refined template for double jeopardy challenges where the State’s charging instruments and trial presentations are ambiguous. The opinion thus advances both clarity in criminal charging and fidelity to West Virginia’s constitutional protections against multiple punishments for the same offense.